Top Tips For Demurrers

Steven Ragland, a partner at Keker, Van Nest and Peters has spoken at our annual California Superior Court Boot Camps almost every year since 2010.

At one of our prior Superior Court Boot Camps, Steven provided this terrific tip sheet for handling Demurrers. It contains suggestions regarding what you need to think about when filing a Demurrer, when writing the brief, and other things you must consider, including arranging for the court reporter, checking the tentative ruling, and preparing the order.

If you’d like to attend our 13th Annual Superior Court Boot Camp, coming up on November 8th in San Francisco, please go here. You can also pre-order the audio package for the San Francisco program, or purchase the audio package for the program just held in Los Angeles on October 12th, at the link provided.

But register quickly (if you see this post before November 8th, 2018) because we’re almost sold out in San Francisco.

Enjoy!

Tips for Demurrers:

I.  Initial Considerations – consider whether you should file a demurrer

A.  Defects in plaintiff’s legal theory must appear on the face of the complaint itself, or through judicially noticeable matters

B.  Only file if it serves a litigation purpose

1.  Expensive for client

2.  Plaintiff will almost certainly get leave to amend

3.  Demurrer will educate adversary

4.  Might result in a stronger complaint

C.  Read (or re-read) Weil & Brown, CCP, and local rules before drafting

D.  Get more time from Plaintiff if you need it (check rules for when stipulation is enough and when you need ex parte application/court order)

II.  Brief-writing considerations

A.  Have a Theme. Really, have a theme.

1.  After striking out before another tribunal, plaintiff tries its hand here

2.  No good deed goes unpunished

3.  A deal is a deal

4.  Here we go all over again (especially for successive demurrer)

B.  Make the Intro count

1.  The Introduction should tell the whole story in summary form

2.  It should tell the Court why you should win—both under the law and as a matter of justice/fairness

3.  After reading Introduction, Judge/law clerk should be convinced you win

C.  Organization matters

1.  Use headings/sub-headings

2.  Headings should be declarative sentences

a.  “This Demurrer should be sustained because the Complaint neither sets forth the material terms of the contract nor attaches the purported contract.”

b.  “The Complaint fails to join indispensable parties.”

c.  “This Court lacks subject matter jurisdiction because Federal Courts have exclusive jurisdiction over cases requiring resolution of patent law issues.”

3.  Headings should tell your entire story

a.  The Judge should be able to scan the table of contents and remember exactly what you are arguing

b.  If fact section is long, break it up

(i)  Your fact section headings can preview your arguments

4.  Spend the time needed to organize arguments

a.  If brief is not easy to follow, you’re more like to lose

D.  Reveal and deal with contrary authority

1.  Always address and distinguish all of your opponent’s primary cases (and secondary to, if possible)

2.  Don’t assume opponent won’t find the cases that go against you

3.  Candor is crucial

a.  Be honest about the hurdles you face, then explain how you clear them

b.  Evasiveness and misstatements of the law erode your credibility, and can lose your motion (never jeopardize your reputation)

E.  Lead with your strength

1.  If you have four arguments for demurrer, address strongest one first, then go down in descending order of strength

2.  If you have one really solid basis, don’t waste space/credibility with marginal arguments

3.  If opposing, take on defendant’s strongest argument first and eviscerate it

4.  On Reply, you don’t have to follow opposition’s organization

F.  Every brief should be a stand-alone document

1.  Write the Reply/Opposition so it makes sense even without reading any other brief (or the Complaint)

G.  Miscellaneous

1.  Don’t be nasty

a.  Opponent is wrong, not “lying” or “conniving” or “slimy”

2.  If you see an adjective or adverb, delete it (most of the time)

3.  Short, declarative sentences; eliminate passive voice

III.  Arrange for a Court Reporter

A.  Coordinate logistics with your adversary and agree to share costs

B.  Even if you lose, what’s said at the hearing may be useful to your client (e.g., successive demurrers, limiting / narrowing discovery, holding plaintiff to its theory, crystallizing issues for summary judgment)

IV.  Check the tentative ruling

A.  Check it as soon as it comes out (check local practice)

B.  Don’t forget—set an Outlook reminder

C.  Notify opponent if you intend to contest—check rules for deadlines and requirements for notice

D.  If you win tentative, sit on your hands

1.  Do not contact opposing counsel to notify (or gloat)

2.  Tentative will be adopted if no one contests

3.  Do not appear at hearing unless other side tells you it will contest—If opponent shows up at hearing without giving you notice, the court will not permit argument and tentative will be adopted…unless you show up

E.  If you lose, go argue like hell (but expect to lose)

1.  Always be respectful, but tell the Court why the tentative is wrong.

2.  Don’t just repeat what you said in your briefs

3.  Limited to issues raised in papers, but bring a fresh perspective and nuance

V.  Prevailing party prepares order

A.  Check rules for timing, details

B.  Be sure to set deadlines for Answer/Amended Complaint in the order if you want to deviate from standard timing provisions

C.  Might be able to get opponent’s sign-off of proposed order at hearing

Justice Entrepreneurs Project’s Pricing Toolkit

At Pincus Professional Education, we are committed to helping educate attorneys who work for legal aid firms and serve low-income populations. One of our partners in this effort is the Chicago Bar Association’s Foundation (Chicago Bar Foundation). Their Justice Entrepreneurs Project (JEP), is a small business incubator that helps newer lawyers start innovative, socially conscious law practices serving low and middle income Chicagoans. We wanted to share their Pricing Toolkit with you as they are continually providing good resources for attorneys.

From the Chicago Bar Association’s Foundation website: One of the core principles for the JEP program and JEP lawyers is to make legal assistance more affordable and transparent to low and moderate income people by offering fixed fees and flexible representation options to potential clients. The toolkit came about after the CBF discovered in the early stages of the JEP program there was a dearth of practical resources for lawyers serving the consumer market who seek to price their services by using arrangements other than the billable hour.

Thanks to a dedicated team effort of partners, volunteers, and staff, this toolkit is “Version 1.0” to help JEP lawyers and other lawyers who are interested in pricing their services to be more affordable and transparent. The toolkit also contains a two page summary matrix that provides a brief overview of various alternative pricing options that can be effective in the consumer market.

A more advanced version of the toolkit will include an appendix with sample forms and templates.

Jiyun Lee is our Latest Featured Speaker!

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Our latest featured speaker is Jiyun Lee from Folger Levin LLP!

Jiyun will be on the faculty panel at our upcoming 13th Annual California Superior Court Boot Camp in San Francisco on November 8! Jiyun first spoke for us at our 12th Annual California Superior Court Boot Camp, where seminar attendees appreciated her precise delivery. Welcome back, Jiyun!

Jiyun is a commercial litigator with extensive experience in financial litigation, contract disputes, trade secret misappropriation, computer forensics, advising and defending public accommodations under the Americans with Disabilities Act, and defending employers in labor and employment disputes, including class action lawsuits alleging violations of wage-and-hour laws, ERISA, and the WARN Act. She has represented financial institutions, rental car companies, law firms, hotels, technology companies, and non-profit organizations as both defendants and plaintiffs.

Jiyun is an experienced trial lawyer who has conducted trials in both federal and state courts, as well as evidentiary hearings before courts and administrative agencies. She has extensive experience handling claims involving injunctive relief, and has successfully obtained preliminary injunctions and specific performance decrees on behalf of clients in contractual and intellectual property disputes.

Since 2011, Jiyun has served as a volunteer mediator for the United States District Court for the Northern District of California.  In 2014, Jiyun served as a Commissioner of the California State Bar’s Commission on Judicial Nominees Evaluation, and is currently a member of the Board of Directors of Star Academy, a private school in San Rafael, California, for students with learning differences.  Jiyun is an active member of the Asian American Bar Association of the Greater Bay Area and the Korean American Bar Association of Northern California.

Jiyun obtained her law degree, cum laude, from Harvard Law School in 1992, and received her B.A. in Politics and Legal Studies with Honors, Phi Beta Kappa, in 1989 from the University of California, Santa Cruz. She is a member of the California Bar.

Patrick Gregory is our Latest Featured Speaker!

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Our latest featured speaker is Patrick Gregory from Shook, Hardy & Bacon!

Pat will be on the faculty panel at our upcoming 13th Annual California Superior Court Boot Camp in San Francisco on November 8! Pat first spoke for us at our Legal Editing: Got Skills? seminar, where attendees raved about his presentation! Welcome back, Pat!

For over 20 years, Pat’s emphasis has been on complex litigation at both the trial and appellate levels, including work on tobacco litigation, automotive cases, complicated contractual disputes, business tort claims, environmental litigation, and antitrust matters. Pat’s innovative legal analysis, writing and advocacy have frequently led to the dismissal of “bet the company” cases long before they reach trial. Pat has also contributed to the successful defense of these cases at trial by creating compelling case-specific motions in limine, developing creative case strategy and themes, arguing for appropriate jury instructions, and advocating for directed verdict and additional limits on the scope of plaintiff’s evidence, claims, damages, and arguments to the jury. He has contributed to several jury research exercises and legal strategy projects performed on behalf of firm clients. In addition, Pat has advised clients on eDiscovery and domestic and foreign data protection issues.

Pat is an active member of SHB’s Professional Development Committee and has often presented at firm seminars on a variety of topics, including punitive damages, deposition strategy, legal writing, state and federal motion practice, and summary judgment oral advocacy. Pat helps organize and often presents at an annual joint CLE for the firm’s San Francisco and Orange County offices and has helped devise California-specific in house CLEs for those firm offices. Pat also participates as a judge in regional and national oral advocacy competitions in the San Francisco Bay Area, and is an active participant in the Ninth Circuit Court of Appeals’ pro bono program.

Pat is a member of the firm’s Global Product Liability Group, Antitrust Practice and Appellate Practice. Pat also assists the firm’s Public Policy Group with amicus curiae briefing before the California appellate courts.

Barbara Adams is our Latest Featured Speaker!

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Our latest featured speaker is Barbara Adams from Clark Hill LLP!

Barbara will be on the faculty panel at our upcoming 13th Annual California Superior Court Boot Camp in San Francisco on November 8! Barbara first spoke for us at our 2013 Legal Editing seminar, and has returned to speak at our 9th Annual CA Superior Court Boot Camp, 2015 Jury Selection seminar, and our 12th Annual California Superior Court Boot CampSeminar attendees have raved about her presentations, and we can’t wait to have her back!

Barbara R. Adams specializes in the defense of toxic tort and product liability litigation involving asbestos, lead, food toxins, underground tanks, and other chemicals in personal injury, property damage, and long-term/latent injury litigation actions. Ms. Adams has completed numerous jury trials in most of the Bay Area Superior Courts, otherwise successfully resolved complex cases, and has participated in the development of complex litigation rules for the Superior and Federal courts.

Ms. Adams also has significant experience and expertise in appellate law. She has filed and defended appeals, writs, and petitions before the California Courts of Appeal, the California Supreme Court, and the Federal Courts of Appeal. Ms. Adams handles appeals in which she has not been involved in the underlying litigation.

You can read Ms. Adams’ views on toxic tort and chemical exposure issues at her blog, Toxics Defense.

Ms. Adams received her B.A. in Political Science from California State University at Fullerton in 1977 and her J.D. from the University of Santa Clara School of Law in 1981. She is admitted to practice in California, the U.S. Ninth Circuit Court of Appeals, and the U.S. District Court for the Northern and Eastern Districts of California.

Dante Tosetti is our Latest Featured Speaker!

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Our latest featured speaker is Dante Tosetti!

Dante will be on the faculty panel at our upcoming Recreational and Medical Marijuana Law and Business in California seminar in Los Angeles on November 1-2! This is Dante’s first year speaking with us, and we can’t wait for his presentation!

Dante Tosetti is a regulatory compliance and risk management consultant to financial institutions. He has over twenty years of risk management experience within private equity, the Federal Reserve and commercial banking. Dante has been covered by the Wall Street Journal, American Banker, Fortune, Geekwire, Reuters PE Hub, and Credit Union Management Magazine for his expert analysis on banking the nascent cannabis industry in a safe and sound manner. He has presented his views on banking marijuana related business at the Power of Collaboration Global Summit at the United Nations in New York and Innovation Project at Harvard University in Cambridge. He also presented at the Cannabis Banking Working Group convened by California State Treasurer John Chiang, the California Bankers Association’s Directors Conference and Bank Counsel Seminar, and the Trigild Fall Conference.

Dante is currently a Regulatory Liaison for a bank which was under a BSA related public enforcement action. Dante was formally recognized as “instrumental” to the bank’s successful release from the public enforcement action. Dante is also consulting for the City of Oakland, City of Berkeley, City of Richmond, and County of Alameda’s feasibility study for a public bank initiative. He consulted to a lobby group pursuing marijuana related banking legislation in the State of Colorado. He has been a regulatory advisor to a marijuana related Fintech startup. He was an invited guest to the Federal Reserve Bank of San Francisco’s cannabis affinity group to discuss marijuana banking policy.

Prior to his independent practice, Dante was the Director of Treasury Compliance with Privateer Holdings, Inc. a global private equity firm shaping the future of the legal cannabis industry. As Director, he oversaw the firm’s compliance with laws and regulations, the Department of Justice Cole Memorandum and corresponding FinCEN guidance. He fostered and established first of its kind relationships with banks, credit unions, insurance providers and merchant service providers in the United States, Canada and the EU. Prior to Privateer, Dante was a Bank Examiner with the Federal Reserve Bank of San Francisco where he led and supported safety and soundness examinations of community, regional, and large banks throughout the nine western states. He was responsible for the evaluation of a bank’s financial condition and operating performance, including capital, asset quality, earnings, liquidity and sensitivity to market risk, assessment of management performance and the effectiveness of risk management practices and control environment, including internal audit, accounting, and credit review. Other roles included review of the investment portfolio, CRE concentrations, and BSA/AML compliance. He received his credentials from the Federal Reserve Board of Governors as a commissioned Bank Examiner. Prior to the Fed, Dante was a commercial banker with credit related responsibilities including underwriting, elationship management, portfolio management, and distressed debt.

Dante earned a degree in Business Administration from the University of San Diego and is a graduate from the Pacific Coast Banking School at the University of Washington. He resides in Northern California.

Amir Sadr is our Latest Featured Speaker!

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Our latest featured speaker is Amir Sadr from Cox, Castle & Nicholson LLP!

Amir will be on the faculty panel at our upcoming Recreational and Medical Marijuana Law and Business in California seminar in Los Angeles on November 1-2! This is Amir’s first year speaking with us, and we can’t wait for his presentation!

Amir is a real estate transactional attorney with extensive experience in all aspects of real estate transactions, including commercial leasing, real property acquisitions and dispositions, development, and management of real estate assets.

Amir has served a wide variety of real estate clients, including national and regional commercial landlords and tenants, real estate investment groups, individual investors, property management companies, and developers. In his representation of his clients, Amir has drafted and negotiated all types of agreements for a variety of office, industrial, retail and medical properties, including, lease agreements, purchase and sale agreements, property management agreements, and other related contracts.

Amir has developed a diverse practice relative to the emerging California cannabis industry which includes advising and representing commercial real estate owners and investors intending to transact business with cannabis operators. Amir’s experience includes the application of the Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”), the relevant provisions of Medical Cannabis Regulation and Safety Act (“MCRSA”), Adult Use of Marijuana Act 2016 (“AUMA”) and various local city and county regulations. Amir represents various commercial owners and investors in connection with the lease and sale of real property to some of the largest cannabis operators in California. Amir has also lectured and written articles on the regulatory framework governing medical and recreational cannabis in California and addressing the opportunities and risks for commercial property owners.

Amir graduated from the University of California, Los Angeles, summa cum laude, with a degree in Political Science. He received his J.D. from the University of California, Los Angeles, School of Law, where he served as the President of the Real Estate Law Association, the Executive Officer of External Affairs for the UCLA Moot Court Honors Board, and Executive Scholarship Editor of the Journal of Law and Technology.

Irán Hopkins is our Latest Featured Speaker!

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Our latest featured speaker is Irán Hopkins from Akerman LLP!

Irán will be on the faculty panel at our upcoming Recreational and Medical Marijuana Law and Business in California seminar in Los Angeles on November 1-2! This is Irán’s first year speaking with us, and we can’t wait for her presentation!

Irán Hopkins is a Partner at Akerman, where she advises clients across a range of industries in all aspects of real estate and business transactions and day-to-day operations, including structuring ownership and joint ventures, equity investments, capital structure and debt financing, M&A transactions, commercial contracts, service and use agreements, purchase and sale of real estate, commercial and residential leasing, development, property management, insurance and business succession planning, disputes and risk management, branding, licensing, intellectual property rights.

Ms. Hopkins is an expert in California cannabis, working with landlords, tenants, lenders, legacy operators, new operators, investors, and other stakeholders in the cannabis industry in all aspects of real estate transactions, business operations, getting products to market, and regulatory compliance with California law on a local, county and state level.

Jonathan Havens is our Latest Featured Speaker!

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Our latest featured speaker is Jonathan Havens from Saul Ewing Arnstein & Lehr!

Jonathan will be on the faculty panel at our upcoming Recreational and Medical Marijuana Law and Business in California seminar in Los Angeles on November 1-2! This is Jonathan’s first year speaking with us, and we can’t wait for his presentation!

Jonathan Havens is co-chair of the Cannabis Law Practice at Saul Ewing Arnstein & Lehr LLP.  He also serves as vice chair of the firm’s Food and Beverage Practice and is a member of the firm’s Life Sciences Practice.  Jonathan’s unique perspective on cannabis regulation is informed by his congressional, federal agency, and national and international law firm experience.

He counsels state cannabis license applicants and awardees, ancillary service and product providers, investors, management companies, and various other entities that are affected by federal and state marijuana laws, such as long-term care facilities and higher education institutions.

Before entering private practice, Jonathan served as a regulatory counsel with the U.S. Food and Drug Administration (FDA), where he focused on compliance and enforcement related to promotion, advertising, and labeling.  Prior to law school, Jonathan held legislative and government affairs positions in which he managed several areas of policy and drafted legislative proposals, and facilitated the development and execution of strategic communications to members of Congress and their staff aides.

Michael Chernis is our Latest Featured Speaker!

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Our latest featured speaker is Michael Chernis from Chernis Law Group!

Michael will be on the faculty panel at our upcoming Recreational and Medical Marijuana Law and Business in California seminar in Los Angeles on November 1-2! Michael first spoke for us at our 2017 Marijuana Law conference, where attendees’ evaluations said he was very informative and gave a fantastic presentation. We are excited to have Michael back!

Michael Chernis is one of California’s premier experts on marijuana legal issues whether it’s criminal, civil, federal, or business related. His law firm, Chernis Law Group P.C. in Santa Monica California, serves the varied needs of collectives, dispensaries, deliveries, cultivators, manufacturers and other medical cannabis clients, including a number of leading cannabis brands.  His experience as a federal criminal defense attorney gives him a unique perspective on federal enforcement issues as they pertain to the cannabis industry.  As Policy Director of the Los Angeles Cannabis Task Force, he has been at the forefront of driving ballot issues and working with lawmakers to enact changes in the law that will benefit existing and prospective stakeholders.